Marc Randazza Wrote An Amicus Brief About Klingon, And It's Magnificent

So a while ago my friend and co-blogger Marc Randazza texts me. "If a 1 is 'I banged any chick I ever just winked at' and a 10 is 'I can recite hamlet in the original klingon,' how much of a Trekkie are you?"

Marc's been my friend for quite a while now so this text wasn't off-putting in the least. For the record, I told him a 6.

Marc needed some translation help. Why? Because he was writing an amicus brief for the Language Creation Society to argue that Paramount Pictures may have a copyright on Star Trek but it can't have a copyright on the Klingon language. The legal point is a fascinating one: if a language is created in connection with a copyrighted work of fiction, can there be a copyright on other use of the language, even if it's not to speak the lines from the copyrighted work?

This is not a case about Defendants using specific, previously used Star Trek dialogue, such as “Tea, Earl Grey, Hot”, but rather about precluding Defendants from creating original dialogue that happens to be in the Klingon language. Plaintiffs provide no authority supporting their assertion that Klingon (or any language) can be copyrighted. “[T]here is no Klingon word for ‘deference’”, and Plaintiffs are entitled to none. Norwood v. Vance, 591 F.3d 1062, 1074 n. 4 (9th Cir. 2010) (Thomas, J. dissenting).

Whether you like law, or language, or Star Trek, the brief is a joy. Marc continues to demonstrate that legal writing can be entertaining, irreverent, and persuasive at the same time.

Comments

At first glance I thought the headline was saying Marc wrote the brief IN Klingon.

Damn.

That would have been exponentially more awesome. Not only for the geekiness of it, but also to show the absurdity of Paramounts claim, as it would mean that the brief itself would be copyrighted by Paramount.

Paramount Pictures is clamping down hardcore on their Star Trek rights. They recently sued a popular web series made and funded by fans. For a franchise that was saved by those very same fans from extinction back in the 1970's, you'd think they would be a little more understanding.

If the courts allow some elements of the Klingon language to be copyrighted but don't shut down the fans entirely, the solution might be a close-as-possible public-domain "dialect" (Eastern Klingon?) or "sister language" (Konling?).

Yeah, when Marc was asking me about it last week, it was always sounding like it was going to be a good brief, but I was surprised that he went for the Klingon script, rather than the latinised version most of us work with, since they often don't come out very distinct and some versions of the font's are 'off'.

IANAIPL, but this seems consistent with my non-practitioner's understanding of how IP law works:

When it comes to understanding things like natural laws, or foreign languages, or lists of everyone in a city and their phone number, you can copyright your work explaining or conveying that information, but you can't copyright the information itself or control how it is used or disseminated afterwards (short of contracting every person you share the work with, of course.)

A new language might be a slightly different animal, because it's your own creation–you're not just studying and explaining something that already exists. Perhaps it would theoretically be possible to protect a newly created language itself under patent law, but I imagine we are way past the statutory bar on Klingon.

If you want to make money creating episodes of Star Trek, go work for Paramount.

This is how IP law seems to work, but perhaps not how it is meant to. A work should clearly enjoy strong copyright protection.

Things are less clear about characters. Case law looks at various factors, such as the originality of the character and the amount of detail in the characterization, to determine whether the character deserves special protection beyond the protection of the works it appears in. There also seems to be substantial conflation of copyright and trademark law to protect characters. Disney in particular has used trademark law to expand protection on their characters beyond the time limit on copyright.

As for settings, universes, and so on, I imagine things are even less clear cut. The use of the name Star Trek seems to be a trademark issue more than anything else, and the fan series probably doesn't fall under fair use. There's no possible confusion issue–it's pretty obvious it's not an official series–but there may be a strong argument for tarnishment. If the fan series can get around this, then there isn't a trademark argument against them using Star Trek. Trademark law doesn't work under the theory that your trademark is so original and creative that you should control how it is used and who uses it–it works under the theory that you need to control your brand name so that people don't mistake other products for yours, or people don't drag your brand name through the dirt by offering bad products with the same name.

Which takes us back to copyright law. Star Trek fan works are undoubtedly taking advantage of a huge body of work and substantial world building by numerous artists. By doing so, they are also taking advantage of a huge established fan base. But when does this become a copyright violation? Cases like RiffTrax implies that it's not automatically a copyright violation to create a work that requires another work to be fully appreciated. However, using a copyrighted character in an original way is infringing (unless it falls under specific fair use exceptions.)

But where do you draw the line for a setting? If you make a work with all original characters and locations, but everything makes a lot more sense if you understand it to be happening in the context of Federation history, is that okay? If your crew is actually visiting Romulus, and details of the world established by Paramount artists become integral to your story, does that cross a line that wasn't crossed before?

Page 11: I'm not convinced that merger applies to character symbols, since there are alternative orthographies available (e.g. Note 28 on the same page).

This does not make much difference, since typefaces are not eligible for copyright as noted on page 12. BTW, there's a typo – the citation to "37 C.F.R. 202.1(d)" should be to "37 C.F.R. 202.1(e)" ("Typeface as typeface").

Also, the latin font used is proportional, but the Klingon is mono-spaced. Does this affect word/line limits?

Also, if this goes to appeal, what are the odds of the case being assigned to a panel that does not include Kozinski?

We can only hope that – whatever their finding – the Court responds in the same spirit. To fail to uphold the freedom of a language would be bad enough but failing to defend the function of elegant and appropriate wit in legal proceedings would be woeful.

A similar issue arises with computer programming languages, which are also invented languages that tend to take on a life of their own. Traditionally, it has been assumed that programming languages could not be copyrighted, but as far as I know it's never been definitively decided by a court, although Oracle v. Google touched on it with respect to the Java API, which can be thought of as a type of language.

That being said, this is on a motion to dismiss, right? The whole brief seems to be an exercise in going outside the pleadings. The judge would probably be within his rights in completely disregarding it.

It is a wonderful brief and I enjoyed it immensely. Since Mr. Randazza can state such an elegant (and humorous) argument, it would wonderful if he would be willing to eliminate most of the profanity in his Popehat posts. I find it very off-putting; not offensive, but a major distraction from the otherwise outstanding content. Or at least tone it down. Some of Popehat's most loyal readers are elderly women…..

I love how he skirts right up to Community for Creative Non-Violence v. Reid, 490 US 730 but doesn't quote it. It is true that languages are not specifically enumerated as a possible work made for hire, though.

So…..I totally thought he had written the ENTIRE brief in Klingon. I was highly impressed. Since only parts of it are in Klingon, I'm only mildly inpressed….and I'm not a Star Trek fan. Either way, I wish him luck.

@Percy Gryce, that's not Arial. It's a sans serif font I don't recognize immediately, but the narrowness of the strokes along with the simplicity and broadness of the glyphs (e.g., "a") mark it as a font distinct from the Helvetica family.

No – they were not making a profit. Proceeds were used to hire someone to manage the overall production since the scope was so big. That person did happen to be the same one who Kickstarted the project, but to say he's making a profit completely mistakes the nature of the arrangement. No shares have been sold. No dividends are paid. It is not a profit arrangement anymore than it would be to use the proceeds to hire a carpenter to work on the set, or to design a DVD/Blu-Ray menu. Someone being paid with money is different from making profit.

@Marzipan: the font looks like Century Gothic, which is just awful in quantity and is to be used very sparingly. It is really a great tragedy when such good writing is composed in such a terrible font.

I'm a non-Trekkie, but would have thought that if any fictional language of the ST universe was an obvious candidate for construction & fan adoration, it'd be whatever the Vulcans spoke. Is there a particular reason that Klingon filled that fan niche instead?

@I Was Anonymous Not always, if memory serves. If there was an official English spelling, that info was never passed down to closed captioning folks. Similarly, the idiotic leader of Libya's name had several spellings through the years: mohmar, moamar, muammar, kadafi, khadafi, kadaffi, qadaffi, gaddafi, and so forth. Maybe the original dictionary had it spelled that way, but that should support Marc's argument if the franchise never made sure they were consistent in spelling.

A few seconds of Googling indicates that the Vulcan language does have a number of speakers/learners (as does Romulan). I'm not sure, but it looks like Klingon was first out of the gate (or the only one?) with an official dictionary from its originating linguist.

Anyway, my guess is that your assumption about which race would most capture fans' imagination is basically backwards. Fans might easily identify with Spock, but that makes Vulcans non-exotic. Would you dress up as a Vulcan so you could act logical and wear plain clothing? Nah, if you're going whole-hog and creating an alternate world where you can dress up and act out and learn a new language, you're probably going for the hyper-aggressive, sexually forward people with the cool-looking (if somewhat impractical) weapons.

@noscitur,
Paragraphs 20 and 56 of the complaint. That's in the original complaint, l gather it's been amended but im to lazy to check the rest of the docket. Docket available on the conlang website, in chronological order.

Marc's argument is convincing but quite peripheral to the case. Visual elements like costume design are clearly copyrightable, so without even getting into conceptual elements like characters or plot, or "feel and mood", Axanar productions is in trouble.

I'm a bit surprised that CBS and Paramount didnt make any trademark claims. Are the tms held by a third party?

Does anyone remember the episode of Frasier in which Frasier, who isn't religious and doesn't know Hebrew, asked a friend of his son for help on a short Hebrew speech for his son's bar mitzvah? The kid wrote him a speech not in Hebrew, but in Klingon, which, of course, Frasier couldn't recognize. The reaction was exactly as one would expect.

Unfortunately, CBS / Paramount issued fan film guidelines that are, well, pretty darn onerous, to say the least. It spells the death of many that were in the works, especially Axanar. How they continue, is yet to be seen, but the uproar is even bigger now, than before. Here they are ICYMI,http://www.startrek.com/fan-films

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